5.Authentication and Hearsay Rulings on Silk Road Records

THE COURT: Let's take our mid-afternoon break. Ladies and gentlemen, we'll take about 15 minutes, and then we'll resume. We'll go then until just a couple minutes before 5:00.

Thank you. I want to remind you not to talk to anybody about this case, including each other. Thank you.

THE COURT: Let's all be seated. I wanted to go over on the record the basis for a number of my rulings because the record I think is developing and I want to make sure that the record is clear as to the basis for the ruling.

Now, let's go back to the government exhibits. These are all government exhibits that I'm talking about so they all begin with the prefix GX. But for a number of them, there are portions of what we have just been going over that are not offered for the truth, but there are some portions which are offered for the truth. Sometimes it might just be a snippet. So we'll go over a couple of those in terms of where they would fall within the hearsay rule.

I would note that for the Vayner objections, I have found specifically as the government had proffered pretrial, that there has been a sufficient foundation laid and authenticity for the various documents through this witness who has personal, firsthand knowledge and has now laid an appropriate evidentiary foundation. So the Vayner objections are overruled.

Starting with 125B and let's go through a couple of these. While the government had said in the pretrial materials I think that this was -- let's make sure that I've got the right one, see response to 125A, which puts us back to 123 -- which is that Vayner is inapposite and not offered for truth.

I think that 125B, there's a portion of it which could be considered as being offered for the truth, which is the portion and only the portion "I am Silk Road, the market, the person, the enterprise, the everything," to the extent that is offered for the truth, these, and there are a series of them, would come in under 803 as a business record relating to Silk Road or 801, subject to connection ultimately, because the ultimate factual issue as to who this is is to be determined, but based upon the government's theory, it would be 803 and 801. That actually is the same for a number of these exhibits.

Now, for Government Exhibit GX 133, this is another one where there had not been an objection previously noted, and part of the reason for that is because it wasn't on the original pretrial order. So I just wanted to make sure that we had noted for the record, Mr. Dratel, what your objection is.

Obviously -- well, I won't say "obviously" anything. Why don't you tell me what the basis for your objection is for GX 133?

THE COURT: That would be under the other portion of the rule and some of them are under 801. Let me also, in addition to the government's response which I would agree in terms of the hearsay, I would make the additional points that as custodians of records for purposes of 803 business records are often custodians who come into business records after-the-fact, and the question is whether or not the particular business appears to have been run in all ways and in a similar fashion.

Here, this individual who is testifying based upon firsthand knowledge is also testifying based upon being an undercover albeit, but a staff member of the very business here.

It's as if he went into a brick and mortar business and was working as a customer service representative in a brick and mortar business answering a telephone. Instead, he's at a computer screen. In any event, it's, as I said, subject to connection ultimately in terms of the admission of Dread Pirate Roberts because we have to connect that if the government does at all through the testimony and other evidence to come.

As we know, the Court's evidentiary rulings are not on the same -- they don't have the same burdens as a criminal verdict would. It's not a beyond-a-reasonable-doubt standard; it's a preponderance of the evidence and/or, for certain rulings, just whether or not it's supportive, more supportive than other inferences. So the Court does find for purposes at this point that there's a sufficient basis.

But let me go through a couple of the others because there are a number of these: 125D was not offered for the truth. That's about maintenance, and it doesn't really matter what was, in fact, happening, whether these maintenance issues, in fact, occurred or did not occur, so it's not a hearsay issue at all. As to the Vayner issues there, that is, I have overruled the Vayner issue as to all of these documents.

In terms of 125H, there is a possibility and, indeed, I would suggest that the way the questions came out, the government was asserting that the forgeries were for the truth. 125H, to the extent forgeries is offered for the truth, that falls under the business record and issue that I just talked about.

In terms of GX 125J relating to commissions, the government has discussed the fact of commissions as being among the points it's intending to make at this trial; therefore, to the extent that any of it is offered for truth, there's not quite a clear statement saying "I take commissions," but that's the overall inference of that entire piece. That would be a business record.

126C, that's a business record of salary of Silk Road administrators. 126D is not for the truth. 125K is not for the truth. 125G is not for the truth in the sense that it's not being necessarily offered for whether or not Dread Pirate Roberts receives reports from his reps, but to the extent it is, it would be a business record subject to connection. 125L is in part offered for the truth. That's the statement about leading an international narcotics organization, as well as the time frame of having been at it for over a year. 125L would fall under 801 or 803, those portions which are potentially in fact offered for the truth there. There is a lot of 125L that is not offered for the truth.

In terms of 126A, that is, in large part, a coconspirator statement. 126A was drafted, as I understand it, by an administrator of Silk Road prior to the time that the witness on the standard, Mr. Der-Yeghiayan, had actually taken over; therefore, it would have been between two individuals working on Silk Road and it would therefore fall under the coconspirator statement, as well as dealing with administrative matters and therefore being a business record. So to the extent that any portion of that is for the truth, it's not clear that any of it is, it's really for the fact that it was said, it would fall under those exceptions and provisions.

Those are, I think, give you a sense as to the rulings. They're all of the same type. So if I have missed one, I think it's relatively straightforward to understand based upon those rulings the similar bucket that it would fall under.

Is there anything that you folks wanted to raise or to further comment on? No, your Honor.

THE COURT: Let me just doublecheck. All right. You did have an objection on the pretrial order.

Does the government have a view as to Mr. Dratel's assertion now and objection that he otherwise had waived?

THE COURT: There were two objections for 125A set forth on the pretrial order. One was a Vayner objection. For the same reasons that I have already described with respect to the other Vayner objections, that objection is overruled.

I agree with counsel that 125A is not offered for the truth; it's about the fact that these words were said. There are not particular factual assertions within them and therefore it would not be considered hearsay and falls outside of the hearsay rules.

Was there something else, Mr. Dratel?

THE COURT: On the prior -- can you pull that door closed? There we are.

On the prior evidentiary rulings, I had talked about the Commission document -- which one was it, do you folks remember? I can find it. 125J.

THE COURT: OK. No, I don't need to add anything other than what I have already said.

OK. Joe, why don't you get the jury.

THE COURT: All right. Ladies and gentlemen, as you get to your seats, let's all be seated.

All right. Mr. Turner, you may proceed, sir.